SUBMISSIONS TO SENATE INQUIRY COMMITTEE:
By: Nicholas Ni Kok Chin
387, Alexander Drive,
DIANELLA WA 6059
Phone: +61892757440
Mobile:
+61421642735
Date: 26th
June, 2013.
SUMMARY OF CONTENT:
1) The Department of the Attorney General of the State of
Western Australia as the Executive Branch of the Government of WA collaborated
with the Judiciary of the State of WA through the legal practice Board of WA
and the Legal Profession Complaints Committee to protect erring lawyers namely
Timothy Robin Thies, Pino Monaco and David Taylor who are guilty of
professional misconduct by having plundered and pillaged their clients with impunity
(the Pillaging and Plundering of Clients).
2) I was the whistle blower in the Pillaging and Plundering
of Clients and as a reprisal against my whistle blowing activities; I was
removed from the roll of barristers of Solicitors of WA by the State Judiciary
of WA for no professional misconduct nor any deprivation of funds from my
former client Ms. Nalini Mathias (Illegal Removal as Barrister and Solicitor).
3) The State Attorney General of WA, the Commonwealth
Attorney General through the Human Rights
Commission of Australia as well as the High Court of Australia is in the know
of the Pillaging and Plundering of Clients and the Illegal Removal as Barrister
and Solicitor. They are therefore
involved in a Conspiracy to Pervert the Cause of Justice contrary to ss. 41 to
43 of the Crimes Act, 1914 (Cth) and are therefore liable to fines as defined
in penalty units as prescribed in ss. 4AA and 4AB of the Act for the continuing
criminal offence; they being corporations are liable to five times of the prescribed
fines in accordance with s. 1312 of the Corporations Act, 2001 (Cth). This liability of the Commonwealth has
already been decided in the case of O’Bryan, Gorgon and CLRG v Commonwealth in
the County Court of Victoria at Bendigo
in CI 06-03878 dated 24.4.2007 with the sanctions of the High Court of
Australia (Penalty for Crimes to Pervert the Cause of Justice).
I am fighting my
case since 2006 because the West Australian Regulator of the Legal Profession
through a conspiracy with the Legal Profession Complaints Committee is taking
away my lawyer independence with the connivance of the Judiciary of Western
Australia. Gordon Turriff Q.C. the President of the Bar Association of British
Columbia, Canada when he visited Perth in WA in September,
2009, he made factual findings that the independence of the BAR in Australia especially Western Australia is being suppressed
by the Judiciary and the Regulator. Justice cannot be seen to be done if the
Judges are not Independent. The same goes for the Independence of Lawyers. Why
Lawyers are not independent in WA? They do not want honest lawyers to defend
the rights of the ordinary people so as to facilitate the plundering and the
pillaging of the common people of Western Australia. That is why the
ordinary Australians are losing their homes to predators every year and this is
a trend.
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4) I am now giving NOTICE to the SENATE of the Parliament of
Commonwealth of Australia that if I were to find no relief, I shall invoke the
inherent jurisdiction of the High Court of Australia by an originating process
for Mandamus Orders against the Defendants who are the Attorney General of the
Commonwealth and the Attorney General of the State of Western Australia within
6 months from date of this Complaint under ss. 42 and 43 of the Crimes Act,
1914 (Comm.). No court has the authority
to stop this originating process as they were wont to do in the past as it is
simply not the law to do so unless they can prove that I am indeed a vexatious
and frivolous litigant (Notice to Senate and Originating Process).
5) If the Notice to the Senate and the Originating Process
were to fail, I shall be compelled to seek justice in the International Court
of Justice at the United Nations to seek remedy for my human rights as provided
by the International Covenants for Civil and Political Rights (ICCPR) through
the AHRC in terms of the following at:
http://en.wikipedia.org/wiki/ICCPR#Australia
which states:
“The covenant is not enforceable in Australia, however, AHRC
legislation[66] allows the Australian Human Rights Commission (AHRC) to examine enacted
legislation[67] (to suggest remedial enactments[68]), its
administration[69] (to suggest avoidance of
practices[70]) and
general compliance[71] with the covenant which is
schedule to the AHRC legislation.[72]
(the Australian Government Responsibility).
6) I am listing the bare minimum evidence which shows the
integrity of my allegation of corruption in the Executive and Judiciary
Branches of the Government of Australia as indicated below:
1) MY WRITTEN SUBMISSIONS BEFORE THE FULL BENECH OF THE SUPREME COURT IN
LPD 2 OF 2012 DATED 23.11.2012.
IN THE SUPREME COURT OF WESTERN
AUSTRALIA
THE FULL BENCH LPD
2 OF 2012
In the matter of the Legal
Profession Act, 2008
AND
In the matter of a practitioner
of this Honourable Court
AND
In the matter of a Report dated
24 April, 2012 and 20 August, 2012 by the State Administrative Tribunal to the
Full Bench of this Honourable Court under the Legal Profession Act, 2008, section 438(2)(a)
BETWEEN
LEGAL PROFESSION COMPLAINTS
COMMITTEE
Applicant
and
NI KOK CHIN Respondent
WRITTEN SUBMISSIONS BY RESPONDENT FOR HEARING
BEFORE THE FULL BENCH OF THE SUPREME COURT OF WESTERN AUSTRALIA ON 23.11.2012
AT 10.30 AM: TO WARD OFF THE RECOMMENDATION OF SAT TO HAVE THE RESPONDENT
STRUCK OFF THE ROLL AS A LEGAL PRACTITIONER.
Your Honour
HEADINGS PAGE
NUMBERS
- The State
Administrative Tribunal (SAT) as represented by JUDGE T SHARP
(DEPUTY PRESIDENT) MR J MANSVELD (MEMBER) MR M ODES QC (SENIOR SESSIONAL
MEMBER) delivered its judgment on 24.4.2012 in LEGAL PROFESSION COMPLAINTS
COMMITTEE and CHIN [2012] WASAT 77
in favour of the Applicant after a three day trial 11, 12 & 13 OCTOBER 2011 (the First Judgment).
- The First Judgment
contains 275 numbered paragraphs in 64 pages. SAT found the Respondent guilty of 13
findings of Professional Misconduct and two findings of Unprofessional
Conduct. Order 11 of paragraph 275
of the First Judgment Order provides that the Respondent is to file
submissions on penalty within 21 days which was duly complied with on
31.5.2012. This is found at:
http://wwwnicholasnchin.blogspot.com.au/2012/05/in-thematter-of-legal-profession-act.html.
- As a result, SAT
delivered its final decision in LEGAL PROFESSION COM-PLAINTS COMMITTEE and
CHIN [2012] WASAT 77 (S)
on 20.8.2012 in 41 numbered paragraphs contained in 13 pages (the Final
Judgment).
- On 5.9.2012, the
Applicant filed its Notice of Originating Motion in LPD 2 of 2012 which is
listed for hearing before a Full Bench of three Judges on 23.11.2012 at 10.30 am. On 13.9.2012,
the Respondent wrote to the Chief Justice of the Supreme Court of WA
copied to the LPCC followed by the Respondent’s facsimile and email letter
to the regulator dated 21.9.2012
requesting for a trial by jury and for the empanelling of Five Supreme
Court Judges for the pending hearing of the matter but this request was
refused by His Honour citing the lack of extraordinary circumstances,
warranting it to be so.
- The issue before this
Honourable Court is WHETHER OR NOT to approve the recommendation of SAT:
that the Respondent be struck off the roll
of barristers and solicitors kept by the Supreme Court under s. 28 of the
Act on the ground that he (the Respondent being never guilty of any
disgraceful and or criminal conduct) is not a fit and proper person to
practice law
(the issue of Fitness).
- To determine the Issue
of Fitness, this Honourable Court must have regard to the Statutory
Provisions and the Common Law position in the following terms:
at the
Suitability Factor as provided by s. 38
and 45
of the Legal Profession Act, 2008 (WA) (the Act):
at the
Suitability for Admission Factor as per s. 22
of the Act.
at the Professional
Misconduct of the Applicant as per s. 403
of the Act.
at the Purpose
of Admission of Local Lawyers as per ss. 20,
26,
30,
31
of the Act.
at the Grounds
for Amending or Cancelling the Practice Certificate and the Show Cause Factors
as per s. 55,
62
and 63
of the Act.
THE OMMISSION FACTOR OF THE LPCC
at the Omission Factor on Ground of the Malicious
Persecution by the Applicant before it (THE OMMISSION FACTOR):
6.6.1. Subs. 438(2)(b)) requires the Applicant,
the LPCC to make/request of SAT for Orders as per ss. 439,
440
or 441
of the Act.
6.6.2. the Applicant, the LPCC to make/request of
SAT for Orders as per subs s. 438(2)(a) pursuant to Subs. 438(3):
(a) that the Australian legal practitioner’s
local practising certificate be suspended for a specified period;
(b) that specified conditions be imposed on an
Australian legal practitioner’s local practising certificate restricting the
entitlement of an Australian legal practitioner to practise for a specified
period.
6.7. IN THE
PREMISES, SAT THEREFORE HARBOURS THE IMPROPER PURPOSE FOR MAKING THE
RECOMMENDATION FOR THE RESPONDENT TO BE STRUCK OFF THE ROLL (THROUGH THE
OMMISSION FACTOR) to make/request
for Orders as per subs s. 438(2)(a) pursuant to Subs. 438(4) of the Act for the
presentment to the FULL BENCH OF THE SUPREME COOURT of:
(a) a record of
the evidence taken at the hearing before SAT;
(b) a recommendation that the name of the
practitioner be removed from the local roll.
- The unique situation as
described in the Respondent’s case in the First Judgment and the Final
Judgment as the justification to strike the Respondent off the Roll as a
legal practitioner contrasts starkly with cases in the common law.
There is NOT an iota of a criminal offence let alone a dishonest intention
of the Respondent that meets the common law test of misappropriation of
property
by deception either through fraud or through a conspiracy to defraud.
In this context, I quote what His Honour MACAULAY J said at para. 6 of his
judgment in the case of: Legal
Services Board v Andre Di Cioccio [2012] VSC 41:
“The circumstances of each of
the offences are set out in my Reasons for Sentence made 7
February 2012: R v Andre Vincent Di Cioccio [2012] VSC
28. As I said in my sentencing remarks,
it appeared that Mr Di Cioccio chose the course of offending for the benefits
it could bring him, with his eyes well open to the nature of his conduct. He
engaged in significant and sustained
dishonest offending in a fashion
that bespoke a cynical rejection of the honest path.”
7. Why does the
regulator in WA through the Applicant need to discipline a lawyer who commits
no wrongs? His Honour MACAULAY J says
that the court has “a discretionary power
to remove a lawyer’s name from the Roll is supplementary to its jurisdiction to
discipline lawyers under its supervision”: See Legal Services Board v
McGrath [2010] VSC 266 [4] and [9].
- Where are the elements
of the Respondent’s case that points to the fact that the Respondent has
missed out on his responsibility and is less than a trustworthy person?
His Honour again at para. 14 of the above judgment said that the “The test is whether the defendant is a
fit and proper person to engage in legal practice (or fit and proper to be
entrusted with the important duties and grave responsibilities which
belong to a solicitor) and will likely remain so for the indefinite future:
See Legal Services Board v
McGrath [2010] VSC 266 [9].
- MACAULAY J again at
para. 15 said that the nature of the Inquiry which this Honourable Court
should be embarking in, are in these words:
“The ambit of this enquiry has
been described by the High Court in the widest terms:
The expression “fit and proper person” is of
course familiar enough as traditional words when used with reference to offices
and perhaps vocations. But their very
purpose is to give the widest scope for judgment and indeed for rejection.
“Fit” (or “idoneus”) with respect to an office is said to involve three things,
honesty knowledge and ability: “honesty to execute it truly, without
malic affection or partiality; knowledge to know what he ought duly to do; and
ability as well in estate as in body, that he may intend and execute his
office, when need is, diligently, and not for impotency or poverty neglect it”
– Coke.
When the question was whether a
man was a fit and proper person to hold a licence for the sale of liquor it was
considered that it ought not to be confined to an inquiry into his character
and that it would be unwise to attempt any definition of the matters which may
legitimately be inquired into; each case must depend upon its own
circumstances. Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127, 156-157.”
(citations omitted)
10. Is there a
misappropriation of property suffered by any of the Respondent’s clients? The misconduct must be so grave as to warrant
his removal from the roll? In this context, MACAULAY J at 17 said that In Legal Services Board v Bourozikas, [2009] VSC 382 where Forrest
J held that the repeated theft of clients’ funds held by the defendant
solicitor demonstrated that the defendant was not fit and proper to engage in
legal practice. His Honour quoted with
approval the observations of Hansen J (as his Honour then was) in Law Institute of Victoria vGough (Unreported, Supreme Court of Victoria, Hansen J, 10
February 1995, 14):
“The conduct (or misconduct)
was grave (as were the offences), striking at the very heart of the standards
of honesty and observance of proper professional standards which are essential
to practice as a solicitor. Nor was there just one transaction, but a series of
appropriations over a prolonged period of time.”
- At
para. 18 MACALAY J said that that:
“case involves misappropriation of clients’ monies in the course of
legal practice, as well as thefts not strictly connected to legal
practice. Mr Di Cioccio’s conduct was
deliberate and repeated. The offences
involved very substantial amounts of money, both individually and in aggregate,
and they were committed over
an extended period of time, more than two an a half years.”
- Sad
to say, in the Respondent’s case, there is not even one cent that was
misappropriated by the Respondent from his clients. He spent his own monies for his clients
and paid his client Mr. Chang Ming Tang of J M Metals Pty Ltd, monies
which he the Respondent did not owe Mr. Chang and gave Notice to him that
he intended to recover it but is not impassioned enough to do so but is
impassioned enough to right the injustice that had been unjustifiably
meted out to him by the reckless judgments or is it something else?
Adopting Hansen J’s observations in the above case the Respondent conduct:
“does not strike at the very heart
of the essential standards required of a legal practitioner” cited at
paragraph 19 of MACAULAY’S J judgment.
- None
of the following cases apply to the Respondent’s case. Examples of lawyers who can be struck
off are for:
12.1. “A substantial and
recurrent failure to meet the requisite professional standard of conduct.” as in the case of Legal Practitioners Conduct
Board v Wharff [2012] SASCFC 116.
12.2. Misappropriation of funds
as in the case of: Dupal v Law Society of New South Wales [1990]
NSWCA 56.
12.3. Protection
of the public: Wentworth v New South Wales Bar Association (1992) 176 CLR 239 per Deane, Dawson, Toohey
and Gaudron JJ at 251;
12.4. Protection of the public from similar defaults by other
practitioners: Harvey v The Law Society of New South Wales (1975) 49 ALJR at 364.
12.5. Failure to be honest with the Court or with
fellow practitioners: Incorporated Law Institute of New South Wales v Meagher (1909) 9 CLR 655 per Isaacs at 681.
12.6. Failures to comply with undertaking,
condition on practising certificate and respond to the regulator’s
correspondence: Council of the Law Society of NSW v Mee Ling [2012] NSWADT 146.
12.7. Misappropriation
of funds, failure to inform of progress of client’s case, lying to client, misleading
a Trust Account Inspector, failure to account for client funds: Council of the Law
Society of NSW v Isaac [2012] NSWADT 203.
12.8. Quistclose
trust in relation client’s moneys paid to the solicitor to be held in trust for
the specific purpose of his paying counsel’s fees:
Legal Services Board v Gillespie-Jones [2012] VSCA 68 (19 April 2012);
Rhodes
v Fielder, Jones and Harrison [1918-19]
All ER 846 at 847 per Lush J (Sanke J agreeing);
Re
Robb (1996)
134 FLR 294 at 310 per Myles CJ, Gallop and Higgins JJ;
Rhodes
v Fielder, Jones and Harrisons [1918-19]
All ER 846 at 847 per Lush J (Sanke J agreeing);
Law
Society of New South Wales v McCarthy [2002] NSWADT 58 at [46] per
Malloy, Robinson QC and Kirk;
Law
Society of New South Wales v Graham [2007] NSWADT 67 at [29]
per Karpin ADCJ, Pheils and Fitzgerald.
- Para.
3: The findings of SAT WA is fallacious and non-existent in terms of the
following:
13.1. Disgraceful and dishonorable
conduct;
13.2. Failure to retain and
maintain standards of competence and diligence expected by a reasonable member
of the public;
13.3. Failure to treat fellow
practitioners and members of the public with courtesy.
13.4. Every questions to the above
has been answered by the Respondent and he is prepared to give viva-voce
evidence to this effect.
14. Paras. 5, 6, 12, 13, 14, 15,
16, 17, 28, 30, 31, 32: The reason
why the relevant statements of the first judgment are in error in found in my
written submission dated 30.5.2012 found at my blogspot at:
http://wwwnicholasnchin.blogspot.com.au/2012/05/in-thematter-of-legal-profession-act.html.
15. Para.7: The Malicious Intent
of the LPCC is explained in the OMMISSION FACTOR OF THE LPCC as indicated
above.
16. Paras 8 & 9: As a result
of OMMISSION FACTOR OF THE LPCC, the orders made pursuant to s. 438(2)(b) of
the Act by the Tribunal is misconceived and is of null effect.
17. Para
10, 21, 22, 23, 24, 25, 27, 29 & 35: The ISSUE OF FITNESS is being
explained by the COMMON ENTRY AND EXIT GATES FOR LAWYERS and the COMMON LAW
MEANING OF DISHONESTY. The Respondent poses no public danger and there is no
deterrence requirement as his all consuming passion was to do his clients
justice in accordance with the law and to publicize the truth. It’s an irony of the law for him to hear a
fellow practitioner telling Judge Eckert during the First SAT decision that it
is alright for a lawyer to speak “untruths” but he is required to swear by the
Bible when he gives evidence before the tribunal that only the Respondent is
required to speak the “truth and nothing
but the truth”. It gives the ordinary person the impression that the law is
a sham and that the judiciary system is hypocritical in its philosophy.
18. Para.11: This is the first
time in history that the Respondent a fully qualified lawyer has been denied
his independent practicing certificate since 12.9.2006 sans a finding of professional misconduct or unsatisfactory
conduct. The same factual circumstances used by the Committee to find the
Respondent guilty of NO MISCONDUCT or UNSATISFACTORY CONDUCT but only “guilty”
of the ludicrous proposition that he is deficient in his professional knowledge
is barred by the principle of res judicata or double-jeopardy in the many
subsequent findings by tribunals that avoided the issues before them and refused
to give the relevant reasons for their decisions. .
18. Para.18: There is lack of
particularity as to how the Committee is contending that the Respondent has “little or no appreciation of correct legal
procedures” as it is a general statement that is applicable even to the
most senior lawyer coupled with the fact that a tribunal should not be dealing
with procedural errors but with the substantive law.
19. There is no legal explanation
that a different yard stick should not be used by the Committee to measure the
different levels of culpability of the Respondent at the different stages of
his professional life. If this argument is not accepted, why do we have trainee
lawyers when other system in other countries does not make this distinction
between a trainee lawyer and a full-fledged lawyer? Is it not true that a trainee lawyer do not
have full-autonomy to perform his duties as a lawyer and works under compulsion
and advice of his mentor?
20. Para.
26: The respondent does not have defective personality traits as a social
animal. There is no doubt that he is capable of commanding the personal
confidence of his clients and fellow practitioners and judges if there was no
interference of cronyism or the failure of the justice system to practice true
democracy in that it is plain commonsense that meritorious litigants should be
allowed to win their cases in accordance with the law only if the principle of
the Rule of Law is obeyed by all with equanimity. The Respondent is quite
capable of expressing with equanimity opinions which differ from the prejudices
of his social environment. If people
around the Respondent are incapable of forming such opinions, fingers should
not be pointed at the Respondent alone.
21. Para. 32, 33 & 34: That is a sociability aspect of the Respondent
for which the tribunal is not qualified to make that psychological assessment
having regard to the fact that the Respondent has enjoyed a successful
professional career in another profession for some 36 years of his life and is
a matured and highly intelligent person with no known personality defects or
psychological drawbacks and had been subjected to tests by trained
psychologists and psychiatrists in Australia as suggested by the Committee or
the regulator.
22. Paras. 37, 38, 39, 40 & 41: The Respondent has not
misconduct himself in these proceedings right from the very start. The malice and prosecutorial misconduct of
the Committee is very apparent to the reasonable mind. Therefore the costs
orders made under unwarranted circumstances are null and void.
23. Every statement above is verifiable by facts already before
the Tribunal and the various courts in these proceedings. The Respondent is prepared to give viva-voce
evidence to this effect.
25. I am a lawyer who is not allowed to be called a lawyer
because of the following reasons:
a) I stand between the abuse of governmental
power and the individual;
b) I stand between the abuse of corporate
power and the individual.
c) I am the hair shirt to the smugness and
complacency of society;
d) I am helping to mold the rights of
individuals for generations to come.
d) In short, I am the trustee of our
liberties.
e) This is our creed, our commitment, our Holy
Grail and who do see who have performed this historic role?
f) I quote the lawyers who have shaped our
democracy:
F.1. I Saw Him So Long Ago, A Philadelphian In
New York, The First Philadelphia Lawyer At The Nation’s First Political Trial,
Upholding John Peter Zenger’s Right To Publish What He Chose, Free From
Censorship Or Interference. His Name Was Andrew
Hamilton, And He Was A Lawyer.
F.2. I Saw Him At The Trial Of Captain
Preston, Another Political Trial, The Unpopular Cause And Client Arising Out Of
The Boston Massacre. His Name Was John Adams, And He Was A Lawyer.
F.3. I Saw Him At That Miracle In Philadelphia, The Constitutional
Convention Of 1787, Fighting For The Bill Of Rights, The Credo Of American
Freedom Not Adopted Until 1789. His Name Was James Madison. He Was A Lawyer.
F.4. I Saw Him Presiding Over The Supreme
Court Of Our Land, The Architect Of The Real Powers Of The Supreme Court. His
Name Was John Marshall, And He Was A
Lawyer.
F.5. I Saw Him Exhorting The Battle Cry Of The
Republic, “Give Me Liberty, Or Give Me Death.”
His Name Was Patrick Henry, And He
Was A Lawyer.
F.6. I Saw Him At Gettysburg With Tears In His
Eyes, Gaunt And Morose, Rededicating Our Country To The Principles Of Equal
Justice For All. His Name Was Abraham
Lincoln, And He Was A Lawyer.
F.7. I Saw Him, An Elemental Man, Fighting For
One Cause Or Another In Dayton, Tennessee, Preaching The
Legitimacy Of Evolution. His Name Was Clarence
Darrow, And He Was A Lawyer.
F.8. I Saw Him Speaking To Us From His
Wheelchair, Lifting Our Spirits, Making Us Stronger With His Inspirational
Philosophy, “The Only Thing We Have To Fear Is Fear Itself.” His Name Was Franklin Delano Roosevelt, And He Was A Lawyer.
F.9. I Saw Him In The Senate Hearing Room In Washington, Uttering That
Anguished Cry For Decency. His Name Was Joseph
Welch, And He Was A Lawyer.
F.10. And I Thought Of The Precious Monuments
hey Had Left To Their Lives And Of Milton’s Wonderful Comment
On Shakespeare That, “Thou In Our Wonder And Astonishment Hast Left Thyself A
Monument”. And Then You Might Think, What Kind Of A Monument Will I Leave? Not
One Of Brick And Mortar Or Stone, But A Thought Because Only A Thought Lives.
And, Finally, I Thought Of That Marvelous
Admonishment Of Holmes, When Almost A Hundred Years Ago, He Said, “I Think That
As Life Is Action And Passion, It Is Required Of Man That He Should Share The
Passion And Action Of His Time At The Peril Of Being Judged Not To Have Lived.”
8)
THE GRIEVANCES OF THE RESPONDENT at the Website of the Just
Grounds Community at: My grievances is made known to the general public
and is being displayed in the Just Grounds Community website at:
1.
Steele, Jenny: Professor of Law at University
of Southampton: Tort Law: Text,
Cases, & Materials OUP 2007 at
page 66.
2.
Trindade,
Francis A: The Law of Torts in Australia, 3rd edition, 1999, page
56.2.
3.
Trindale,
Francis A: “The Modern Tort of False Imprisonment” page 229 at 246.7 in Torts
in the Nineties, ed by Nicholas J Mullaney, LBC, Sydney, 1997;
The
Legal Profession Act (2008): ss.20, 26, 22, 28, 30, 31, 38, 45, 403, 438, 439,
440, 441.
1.
Antigua Case (1830) 1 Knapp 267 (12 ER 321;
2.
Chaytor v London, New
York and Paris Association of Fashion Ltd (1961) 30
DLR (2d) 527 at 536-537 (Newfoundland
Supreme Court, Canada)
per Dunfield J..
3.
Council of the Law Society of NSW v
Isaac [2012] NSWADT 203;
4.
Council of the Law Society of NSW v Mee
Ling [2012] NSWADT 146;
5.
Dupal v
Law Society of New South Wales [1990] NSWCA 56;
6.
Harvey v The
Law Society of New South Wales (1975) 49 ALJR at 364;
8.
Incorporated Law
Institute of New
South Wales v Meagher (1909) 9 CLR 655 per Isaacs at 681;
9.
Law Society of New South Wales v Graham [2007] NSWADT 67 at [29] per Karpin ADCJ,
Pheils and Fitzgerald.
10.
Law Society of New South Wales v McCarthy [2002] NSWADT 58 at [46] per Malloy,
Robinson QC and Kirk;
12.
LEGAL
PROFESSION COMPLAINTS COMMITTEE and CHIN [2012] WASAT 77
13.
LEGAL
PROFESSION COM-PLAINTS COMMITTEE and CHIN [2012] WASAT 77 (S)
14.
Legal Services Board v
Gillespie-Jones [2012] VSCA 68 (19 April 2012);
15.
Re Robb (1996)
134 FLR 294 at 310 per Myles CJ, Gallop and Higgins JJ;
16.
Rhodes v Fielder, Jones and Harrison [1918-19] All ER 846 at 847 per Lush J
(Sanke J agreeing);
17.
Rhodes v Fielder,
Jones and Harrisons [1918-19]
All ER 846 at 847 per Lush J (Sanke J agreeing);
18.
Wentworth v New
South Wales Bar Association (1992) 176 CLR
239 per Deane, Dawson, Toohey and Gaudron JJ at 251;
19.
ZIEMS v. THE PROTHONOTARY OF THE SUPREME COURT OF
N.S.W. [1957] HCA 46; (1957) 97 CLR
2792;
2) MY ORAL SUBMISSIONS BEFORE THE DEPUTY PRESIDENT OF SATWA AS ANNOTATED AS
COMMENTS ON MY BLOGSPOT AT:
|
VR87 OF 2008: LPCC V CHIN's decision in [2012]
WASAT77
1 message
|
|
Nicholas N Chin
|
Thu, May 31, 2012 at 10:09 AM
|
|
To: Legal Profession Complaints Committee
|
|
The
Chief Executive Officer of SAT
Attention:
Panel Members in VR87 of 2008
The
Legal Profession Complaints Comittee of WA.
Dear
Sirs
I
refer to the above matter and would like to point your attention to my
COMMENT No.2 displayed at my blogspot http://wwwnicholasnchin.blogspot.com.au/ with
regard to the point of law as pointed out by Barrister Stephen Warne at his
blogspot as indicated below (the point of law).
The
point of law is with reference to item 11 and Order No.6 of SAT dated
24.4.2012 of the Table in my Written Submission in VR87 of 2009 dated
30.5.2012 served upon SAT and LPCC on the same day. It means that Mr.
White as director of Finebeam Pty Ltd, the debtor has the right to
determine how he would need to apply the payment of the $2k to the
Respondent which he did on 11.8.2005. If the debtor did not make this
appropriation, then that right belongs to the creditor. In this case, the
creditor and the debtor did decide to pay the Respondent the sum of $2k for
his legal costs at the time both reached a compromise on the 11.8.2005.
There is therefore no contingency payment as the legal fees of $2k
was paid at the time when work had been performed by the Respondent for the
creditor. See the email below:
----------
Forwarded message ----------
From: The
Australian Professional Liability Blog <warne@vicbar.com.au>
Date:
Thu, May 31, 2012 at 5:05 AM
Subject:
The Australian Professional Liability Blog
To: nnchin1@gmail.com
|
Posted: 30 May 2012 06:48 AM PDT
I have never known until
recently what the law was in relation to a creditor’s obligations and
entitlements where a debtor makes a payment which could be applied to one
of several debts. I never went to look it up, but had I needed to,
I’m not sure I would have known where to look. Then I stumbled across it
while reading a judgment. Experience teaches that allocations of payments
against debts can have many ramifications, the most obvious of which is
in relation to interest. This statement was recently re-stated as
good law in Victoria:
When a debtor is making a
payment to his creditor he may appropriate the money as he pleases, and
the creditor must apply it accordingly. If the debtor does not make any
appropriation at the time when he makes the payment the right of
application devolves on the creditor.
It is a statement of Lord
McNaughten in Cory Brothers
& Company v Owners of Turkish Steamship ‘Mecca’ [1897] AC 286 at
293 and Deeley v Lloyds Bank Limited [1912] AC 756,
783 is apparently to like effect.
Cheers
NICHOLAS NI KOK CHIN.
(note:THIS EMAIL IS TO BE SENT
SEPARATELY BY THE RESPONDENT THROUGH THE COMMUNICATION CHANNEL TO SAT ON
THE SAME DAY by facsimile).
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3) WHAT THE DEPUTY PRESIDENT OF SATWA CANNOT DO:
THE TRANSITIONAL EFFECTS OF THE LEGAL PROFESSION ACT 2008 IN SO FAR AS IT
AFFECTS MY CASE IN VR 87 OF 2009
SEE THE FIVE COMMENTS RELATING TO THE DECISION OF SAT DATED 24.4.2012 TO
STRIKE ME OFF THE ROLL AT:
http://wwwnicholasnchin.blogspot.com.au/2012/05/in-thematter-of-leg...
THE PRESIDENT OF SAT CANNOT MAKE THE DECISION TO STRIKE ME OFF THE ROLL ON
TH FOLLOWING GROUNDS:
1) AS HIS HONOUR HAD REFUSED TO PRODUCE THE MISSING BANK STATEMENT SUBMITTED BY
DAVID TAYLOR ON 29.11.2011 AND VIEWED BY MAURICE LAW ON 30.11.2011 IN VR158 OF
2011 OR [2012] WASAT 36 (A CONSTITUENT ELEMENT OF THE FINDINGS AT ITEM 11 OF
THE TABLE OF JURISDICTIONAL ERRORS AS CITED ABOVE).
2) HIS HONOUR HAD RECUSED HIMSELF FROM THE HEARING OF VR87 OF 2009 AFTER THE
APPLICANT HAD VEHEMENTLY OPPOSED THE DECISION IN [2009] WASAT 219.
3) HIS HONOUR ALSO DECIDED ON THE RES JUDICATA DECISION IN [2008] WASAT 252.
THE TRIBUNAL IN THE SKEA [2005]WASAT 196 CASE AT PARAGRAPH 25 SAID:
"By virtue of s 250A(1) and (2) of the LP2003 Act, the Tribunal cannot
exercise it powers under s 185(2)(a) of the LP 2003 Act and make and transmit a
report to the Supreme Court (full bench) or order the suspension of a legal
practitioner from practice, unless the Tribunal is constituted so as to include
the President.
THE CURRENT PRESIDENT OF SAT IS HIS HONOUR JUSTICE CHANEY WHO WOULD BE IN
CONFLICT OF INTERESTS IF HE WERE TO MAKE THIS DECISION.
4) JUSTICE CHANEY HAD TO ABDICATE HIMSELF FROM THE JUDGMENT OF VR 87 OF 2009
DECISION ON 24.4.2012 AND THE 20.8.2012 DECISIONS. HIS POSITION WAS TAKEN
OVER BY THE DEPUTY PRESIDENT TIMOTHY SHARP J.
5) THE APPLICABLE ACT TO MY CASE IN VR 87 OF 2009 IS THE LEGAL PRACTICE ACT,
2003 AND ITS PROVISIONS DO NOT ALLOW A DEPUTY PRESIDENT TO MAKE THAT DECISION
TO STRIKE ME OFF THE ROLL. ONLY A PRESIDENT OF SAT COULD DO IT.
6) S.250A(2) SPECIFICALLY PROVIDES THAT THE PRESIDENT MUST DO IT AND NOT THE
DEPUTY PRESIDENT:
"The State Administrative Tribunal is not to exercise its powers under
section 185(2)(a), or order the suspension of a legal practitioner from
practice, unless the Tribunal is constituted so as to include the
President."
7) S.185(2)(a) states:
"(2) On making a finding in respect of a legal practitioner under
subsection (1) the State Administrative Tribunal may —
(a) make and transmit a report on the finding to the Supreme Court (full
bench);" or
4) MY LETTER TO THE CHIEF
JUSTICE OF WA ET AL., DATED 24.1.2013
Nicholas Ni Kok
Chin - LL.B.; B.Econs.(Business & Accountancy), Post.
Grad. Dip (Business Law)
Our Ref: NNC-LPCC-C108OF2012
& LPD2 OF 2012.
The Hon. Chief Justice Wayne Stewart Martin
Executive Assistant, Chief Justice's Chambers - tel (08) 9421 5337
E-mail -
Chief.Justice.Chambers@justice.wa.gov.au
Associate - tel (08) 9421 5395 E-mail -
Associate.Chief.Justice@justice.wa.gov.au
The Hon. Justice John Roderick McKechnie
Associate - tel (08) 9421 5385
E-mail -
Associate.Justice.McKechnie@justice.wa.gov.au
The Hon. Justice Stephen David Hall
Associate - tel (08) 9421 5382
E-mail -
Associate.Justice.Hall@justice.wa.gov.au
The Legal Profession Complaints
Committee
2nd Floor,
55, St. Georges Terrace
PERTH
WA 6000
Dear Sirs
LPD NO.2 OF 2012: HEARING BY
FULL BENCH ON 23.11.2012- CORAM: McKECHNIE J, BEECH J and HALL J
I have considered s. 622 of the Legal Profession Act, 2008 as suggested by
His Honour Justice McKechnie, which provides:
(1)
Part 13 applies in relation to conduct of Australian lawyers, former
Australian lawyers, Australian legal practitioners and former Australian legal
practitioners whether the conduct occurred before or after the commencement
day.
(2)
Part 13 applies to conduct consisting of a contravention of the 1893 Act
or the 2003 Act or the rules in force under those Acts before the commencement
of this section as if the conduct consisted of a contravention of this Act or
the legal profession rules.
I therefore conclude and admit that the Applicable Statute is the Legal
Profession Act, 2008 and not the Legal Practice Act, 2003. Despite the above, the Honourable Deputy
President Judge Sharp still has not the right to make the impugned SAT
recommendation to the Full Bench in the First Judgment and the Final Judgment
on the following grounds:
1) I have made my written submissions dated and filed 30.5.2012 and include
the appended table within that submission (the Table).
2) The Table annotates specifically point by point how and why the Deputy
President Judge Sharp had erred in his First Judgment dated 24.4.2012 (the
Refutation).
3) The Deputy President ordered that I address the issue on why the Impugned
Penalty as contained in the First Judgment should not be imposed upon me the
Respondent (the Penalty Issue).
4) The Penalty Issue must cover the Refutation as the former cannot exist
alone and must co-exist with the latter (the Submission). Therefore the
Submission as contained in my written submission to SAT dated and filed the
30.5.2012 must be specifically responded to item by item, by the Deputy
President in the SAT Final Judgment dated 20.8.2012, failing which, that SAT
Final Judgment is consequently rendered VOIDABLE at the option of the
Respondent in VR87 of 2009 on the ground that SAT had knowingly evaded the
issues validly brought to the attention of the Deputy President Judge Sharp by
the Respondent at the point of time before His Honour delivered the Final SAT
Judgment dated 20.8.2012 (the SAT VOIDABLE FINAL JUDGMENT).
5) The SAT VOIDABLE FINAL JUDGMENT is to be lawfully declared by the Full
Bench to be NULL and VOID and should be so declared on 23.11.2012 (the SAT VOID
FINAL JUDGMENT).
6) There is no legal requirement for the Respondent to appeal the SAT First
Judgment or the SAT VOID FINAL JUDGMENT on the following grounds:
6.1. Under the exigency of circumstances, the Full Bench should not have
refused but had indeed refused the reasonable request of the Respondent for the
adjournment of the continued hearing of LPD No.2 of 2012 on 23.11.2012 pending
the Respondent appealing the SAT First Judgment or the SAT VOID FINAL JUDGMENT
(the Unreasonable Refusal for Adjournment).
6.2. The time for appealing the SAT First Judgment or the SAT VOID FINAL
JUDGMENTY does not begin to run until the 23.11.2012 or the date of the
Unreasonable Refusal for Adjournment (Time for Appeal commences on
23.11.2012).
7.
The Full Bench of the Supreme Court continued hearing of LPD No.2 of 2012 and
reserving its judgment as a consequence on 23.11.2012 only has the SAT VOID
FINAL JUDGMENT before it. Despite its
reserved judgment, the Full Bench therefore does not have the necessary
jurisdiction conferred upon it by s. 444 of the Legal Profession Act, 2008 to
strike the Respondent off the roll of Barristers and Solicitors.
Yours faithfully
NICHOLAS N CHIN
Office:
387 Alexander Drive,
DIANELLA WA 6059
,
AUSTRALIA.
Contact:
ph:
+6189275 7440; fax: +618 92757440; mobile: 0421642735; emails:
nnchin1@gmail.com;
nnchin@msn.com;
Sky
pe: nicholasnchin2885
5) MY LETTER TO THE CHIEF JUSTICE OF WA ET AL., DATED 23.2.2013.
Nicholas Ni Kok
Chin - LL.B.; B.Econs.(Business & Accountancy), Post.
Grad. Dip (Business Law)
Our Ref: NNC-LPD2 OF 2012.
The Legal Profession Complaints Committee
2nd Floor,
55, St. Georges Terrace
PERTH WA 6000
Thursday, November
22, 2012
Dear Sirs
HEARING OF LPD2 OF 2012 LPCC V CHIN AT 10.30 AM IN COURT ROOM NO. 1 ON
FRIDAY 23.11.2012:
CORAM: MCKECHNIE J., BEECH J. , HALL J.
I
refer to the above matter and would like state the following:
1. I want the
Honourable McKechnie to recuse himself as a judge from hearing the above case
and the Full Bench be so re-constituted (the Recusal).
2. The grounds for the
Recusal of McKechnie J is based on the fact that His Honour is biased and
prejudiced against me in the two previous judgments in RE NICHOLAS NI KOK CHIN; EX PARTE CHIN
[2012] WASC 219 and RE
NICHOLAS NI KOK CHIN; EX PARTE CHIN [2012] WASC 220 (the Two Judgments),
both dated 18.6.2012, where:
2.1 His Honour did shut his mind to the single issue of the
past decisions of the various courts that has never been litigated thereby
implicating that I am a Vexatious Litigant when in factual fact I could never
be one if my explanations were examined and read carefully by His Honour (the
Non-Res Judicata Issue).
2.2.The Non-Res Judicata Issue confuses His Honour Justice
Murray’s mind thereby causing His Honour to believe falsely that I was a
Vexatious Litigant (Mr. Chin’s Status as
a Vexatious Litigant).
2.3. The Non-Res
Judicata Issue relates to an Error of Law that is in turn related to fact and
the law that there can never be a Caveatable Interests for a Caveator if he
simply does not have proprietary interests in the subject property that he had
wrongfully lodged his caveat against (The Undecided Error of Law).
2.4. My learned
friend Mr. Timothy Robin Thies did not have the necessary proprietary interests
in my son Paul C K Chin’s home at No.29 O’Dell Street,
Thornlie in the State of Western Australia
to found his Caveatable Interests, which became the crucial issue that caused
the injustice to me and my son (Mr. Thies Non-Caveatable Interests).
2.5. Mr. David
Taylor did not see the missing proprietary interests of Spunter Pty Ltd in both
the Hazelmere and Mt. Lawley
properties of Ms. Nancy Cloonan Hall to found Spunter’s Caveatable Interests and
a result that became the protracted litigation that I and Maurice Law were
involved in CACV 107 of 2008 and et sequel (Spunter’s Non-Caveatable
Interests).
2.6. Mr. Thies
Non-Caveatable Interests and Spunter’s Non-Caveatable Interests are the cause
of the Undecided Error of Law and Mr. Chin’s Status as a Vexatious Litigant).
2.7. His Honour’s
duties as a judge in the two judgments have never been discharged and it is the
case that His Honour is unwilling to see the Non-Res Judicata Issue and the
Undecided Error of Law but gave the excuse that His Honour could not understand
my plaints. Nothing could be easily
understood without His Honour acquiring an adequate background knowledge of it
which I was at pains to provide. The two judgments have therefore brought about
gross injustice to me and if His Honour were allowed to hear the above
proceedings, it is more than likely that His Honour would bring about further
gross injustice to me (the Further Injustice of McKechjie J).
3. In the
premises, I daresay that the Further Injustice of McKechnie J shall be
“exacerbated” by this Honourable Court should His Honour be put to the test to
hear the important point of the fact and the law which I refer to as the
JURISDICTIONAL ERROR OF SAT IN VR 87 OF 2009.
In short, there is currently no valid judgments of the SAT Panel in VR87
of 2009 dated 24.4.2012 and 20.8.2012 that is before this Honourable Court in
LPD2 of 2012 and that is purportedly warranting the Motion of the LPCC that I
be struck off the roll of Barristers and Solicitors. My argument is based on the following
grounds:
3.1. At all
material times, the alleged 13 findings of professional misconduct and two
findings of unprofessional conduct against me were allegedly committed by me during
the years 2004 and 2005. The applicable
statute law is therefore the Legal Practice Act, 2003 and not the Legal
Profession Act, 2008 (the Applicable Statute Law).
3.2. S. 205A and
s. 185 of the Applicable Statute Law provides that President of the State
Administrative Tribunal of Western Australia His Honour Chaney J must make the
decision recommending me to the Full Bench of the Supreme Court of Western
Australia to have me struck off the roll of Barristers and Solicitors of the
Supreme Court of Western Australia (the Applicable Statute Law).
3.3. Both the SAT
decisions dated 24.4.2012 and 20.8.2012 are not the decision of President of
SAT Justice Chaney but the Written Judgment of His Honour Judge Timothy Sharp
in his role as the Deputy President of SAT.
This is not permitted by the Applicable Statute Law and is referred to as the JURISDICTIONAL ERROR
OF SAT IN VR87 OF 2009. This translate into a NULL and VOID RECOMMENDATION
argument succinctly put by me at the Just Grounds Community Website entitled:
THE TRANSITIONAL EFFECTS OF THE LEGAL PROFESSION ACT 2008 IN SO FAR AS IT
AFFECTS MY CASE IN VR 87 OF 2009 at:
http://justgroundsonline.com/forum/topics/the-transitional-effects-of-the-legal-profession-act-2008-in-so.
3.5. Therefore I
plead that this Honourable Court do accede to my application for the Recusal of
McKechnic J and do dismiss this Motion with costs and do compensate me for all
my economic losses and damages and the hardship that I had had to undergo all
these years since 12.9.2006 till today but for the improper motives of the LPCC
in taking away my lawyer Independence unjustifiably.
Yours faithfully
Nicholas Ni Kok Chin
Office: 387 Alexander Drive,
DIANELLA WA 6059,
AUSTRALIA. Contact: ph:
+6189275 7440; fax: +618 92757440; mobile: 0421642735; emails: nnchin1@gmail.com; nnchin@msn.com; Skype:
nicholasnchin2885
This represents the
culmination of the Respondent’s deprivation of his liberty by the regulator who
is reasonably observed to have been abusing the process of court through an
improper motive by the members of the Legal Profession Complaints Committee due
to the undeniable fact that it is reasonably discerned that there was a
concerted and persistent efforts by Members of the LPCC being imbued with an
improper motive to impose upon the Respondent a psychological type of false
imprisonment: See the Authority on the law for psychological false imprisonment
in: Francis A
Trindade, “The Modern Tort of False Imprisonment”
page 229 at 246.7 in Torts in the Nineties, ed by Nicholas J Mullaney,
LBC, Sydney, 1997; Francis A Trindade, The Law of Torts in Australia,
3rd edition, 1999, page 56.2. Dunfield J. in Chaytor v London, New York and
Paris Association of Fashion Ltd (1961) 30 DLR (2d) 527 at 536-537 (Newfoundland Supreme Court, Canada).
Section 38.
Suitability to hold local practising certificate
(1) This
section has effect for the purposes of section 45 or any other provision
of this Act where the question of whether or not a person is a fit and proper
person to hold a local practising certificate is relevant.
(2) The Board may, in considering whether or
not the person is a fit and proper person to hold a local practising
certificate, take into account any suitability matter relating to the person,
and any of the following, whether happening before or after the commencement of
this section —
(a) whether the person obtained an Australian practising
certificate because of incorrect or misleading information;
(b) whether the
person has contravened a condition of an Australian practising certificate held
by the person;
(c) whether the
person has contravened this Act, a previous Act or a corresponding law or the
regulations or legal profession rules under this Act or a corresponding law;
(d) whether the
person has contravened —
(i) an order
of the Complaints Committee or the State Administrative Tribunal or Supreme
Court (full bench) exercising jurisdiction under this Act or a previous Act; or
(ii) an order of a
corresponding disciplinary body or of another court or tribunal of another
jurisdiction exercising jurisdiction or powers by way of appeal or review of an
order of a corresponding disciplinary body;
(e) without
limiting any other paragraph —
(i) whether
the person has failed to pay a required contribution or levy to the Guarantee
Fund; or
(ii) whether the
person has contravened a requirement imposed under this Act about professional
indemnity insurance; or
(iii) whether the
person has failed to pay other costs, expenses or fines for which the person is
liable under this Act or a previous Act;
(f) any other
matters relating to the person the Board considers are appropriate.
(3) A person may be
considered a fit and proper person to
hold a local practising certificate even though the person is within any of the
categories of the matters referred to in subsection (2), if the Board
consider that the circumstances warrant the determination.
(4) If a matter
was —
(a) disclosed in an
application for admission to the legal profession in this or another jurisdiction;
and
(b) determined by
the Supreme Court or by the Board or a corresponding authority not to be
sufficient for refusing admission,
the matter cannot
be taken into account as a ground for refusing to grant or renew or for
cancelling a local practising certificate, but the matter may be taken into
account when considering other matters in relation to the person concerned.
Section 45. Grant or
renewal of local practising certificate
(1) The Board must
consider an application that has been made to it for the grant or renewal of a
local practising certificate and may —
(a) grant or refuse
to grant the certificate; or
(b) renew or refuse
to renew the certificate.
(2)The Board may,
when granting or renewing the certificate, impose conditions as referred to in
section 47.
(3) The Board may
refuse —
(a) to consider an
application if —
(i) it is not made
in accordance with this Act; or
(ii) the required
fees and costs have not been paid; or
(b) to grant or
renew a local practising certificate if the applicant has not complied with
this Act in relation to the application.
(4) The Board must
not grant a local practising certificate unless it is satisfied that the
applicant —
(a) was eligible to
apply for the grant when the application was made; and
(b) is a fit and
proper person to hold the certificate.
(5)The Board must
not renew a local practising certificate if it is satisfied that the
applicant —
(a) was not eligible to apply for the renewal when the
application was made; or
(b) is not a fit
and proper person to continue to hold the certificate.
(6) The Board
must not grant or renew a local practising certificate if it considers the
applicant’s circumstances have changed since the application was made and the
applicant would (having regard to information that has come to the Board’s
attention) not have been eligible to make the application when the application
is being considered.
(7) If the
Board grants or renews a local practising certificate, the Board must, as soon
as practicable, give the applicant —
(a) for the grant
of a certificate — a local practising certificate; or
(b) for the renewal
of a certificate — a new local practising certificate.
(8) If the
Board —
(a) refuses to
grant or renew a local practising certificate; or
(b) imposes a
condition on the certificate and the applicant does not agree to the condition,
the Board must, as
soon as practicable, give the applicant an information notice.
(9) The Board
is taken to have refused to grant a local practising certificate if the
certificate has neither been granted nor refused within 6 months
after —
(a) if the
Board has given the applicant a notice under section 75 — the
applicant has complied with the notice to the Board’s satisfaction; or
(b) if
paragraph (a) does not apply — the application was lodged.
Section 22. Suitability
for admission
(1) The Supreme
Court or Board must, in deciding if a person is a fit and proper person to be
admitted to the legal profession, consider —
(a) each of
the suitability matters in relation to the person to the extent that a
suitability matter is appropriate; and
(b) any other
matter it considers relevant.
(2) However, the
Supreme Court or Board may consider a person to be a fit and proper person to be admitted
despite a suitability matter because of the circumstances relating to that
matter.
Section 403.
Professional misconduct
(1) For the
purposes of this Act —
professional
misconduct includes —
(a)
unsatisfactory professional conduct of an Australian legal practitioner,
where the conduct involves a substantial or consistent failure to reach or
maintain a reasonable standard of competence and diligence; and
(b) conduct
of an Australian legal practitioner whether occurring in connection with the
practice of law or occurring otherwise than in connection with the practice of
law that would, if established, justify a finding that the practitioner is not
a fit and proper person to
engage in legal practice.
(2) For the purpose
of finding that an Australian legal practitioner is not a fit and proper person to engage in legal
practice as mentioned in subsection (1), regard may be had to the
suitability matters that would be considered if the practitioner were an
applicant for admission or for the grant or renewal of a local practising
certificate.
Section 20. Purposes
The purposes of
this Part are as follows —
(a) in the
interests of the administration of justice and for the protection of consumers
of legal services, to provide a system under which only applicants who have
appropriate academic qualifications and practical legal training and who are
otherwise fit and proper persons to
be admitted are qualified for admission to the legal profession in this
jurisdiction;
(b) to provide
for the recognition of equivalent qualifications and training that make
applicants eligible for admission to the legal profession in other
jurisdictions.
Section 26.
Admission by the Supreme Court
(1) The Supreme
Court (full bench) may admit a person as a lawyer if —
(a) the Supreme Court (full bench) is satisfied that the
person —
(i) is eligible for admission to the legal profession; and
(ii) is a fit and proper person to be admitted to
the legal profession; and
(b) the person
takes an oath of office, or an affirmation of office, in the form required by
the Supreme Court.
(2) For the
purposes of subsection (1)(a), the Supreme Court (full bench) may rely on
the advice of the Board.
(3) The advice of
the Board may be contained in a compliance certificate.
(4) The Supreme
Court (full bench) may refuse —
(a) to consider an
application for admission if it is not made in accordance with the admission
rules; or
(b) to admit the
person if the person has not complied with the admission rules.
Section 30. Board to
advise on applications for admission
The Board
must —
(a) consider
applications by persons for admission to the legal profession under this Act;
and
(b) advise the
Supreme Court as to whether it considers that —
(i) the applicant is eligible for admission; and
(ii) the applicant is a fit and proper person to be admitted; and
(iii) the
application is in accordance with the admission rules.
Section 31. Compliance certificates
(1) If, after
considering an application for admission to the legal profession, the Board
considers that —
(i) eligible for
admission; and
(ii) a fit and proper person to be admitted; and
(b) the
application is in accordance with the admission rules; and
(c) there are
no grounds for refusing to give a certificate of the matters mentioned in
paragraphs (a) and (b) (a compliance certificate ),
the Board must,
within the time specified in or determined in accordance with the admission
rules, advise the Supreme Court to that effect by filing a compliance
certificate.
(2) If the Board
refuses to give a compliance certificate to an applicant, the Board must,
within the time specified in or determined in accordance with the admission
rules, give the Supreme Court and the applicant an information notice about the
refusal.
(3) An
applicant may apply to the State Administrative Tribunal for a review of a
decision of the Board to refuse to give the applicant a compliance certificate.
(4) The Board
is taken to have refused to give a compliance certificate if a compliance certificate
has neither been given to the applicant nor refused within 6 months
after —
(a) if the
Board has given the applicant a notice under section 32 — the
applicant has complied with the notice to the Board’s satisfaction; or
(b) if
paragraph (a) does not apply — the application for admission was
lodged.
Section 55. Grounds for
amending, suspending or cancelling local practising certificate
Each of the
following is a ground for amending, suspending or cancelling a local practising
certificate —
(a) the
holder is no longer a fit and proper person to hold the certificate;
(b) the holder is not, or is no longer,
covered by professional indemnity insurance that complies with requirements
imposed under this Act;
(c) if
a condition of the certificate is that the holder is limited to legal practice
specified in the certificate — the holder is or has been engaging in legal
practice that the holder is not entitled to engage in under this Act.
Section 63. Refusal,
amendment, suspension or cancellation of local practising certificate —
failure to show cause
(1) The Board may
refuse to grant or renew, or may amend, suspend or cancel, a local practising
certificate if the applicant or holder —
(a) is
required by section 61 or 62 to provide a written statement relating
to a matter and has failed to provide a written statement in accordance with
that requirement; or
(b) has provided a
written statement in accordance with section 61 or 62, but the Board
does not consider that the applicant or holder has shown in the statement that,
despite the show cause event concerned, the applicant or holder is a fit and proper person to hold a local
practising certificate.
(2) For the
purposes of this section only, a written statement accepted by the Board under
section 62(3) is taken to have been provided in accordance with
section 62.
(3) The Board must
give the applicant or holder an information notice about the decision to refuse
to grant or renew, or to amend, suspend or cancel, the certificate.
Section 62 Holder of
local practising certificate — show cause event
(1) This section applies to a show cause event that happens in relation
to the holder of a local practising certificate.
(2) The
holder must provide to the Board both of the following —
(a) within 7 days after the happening of the
event — notice, in the approved form, that the event happened;
(b) within
28 days after the happening of the event — a written statement
explaining why, despite the show cause event, the person considers himself or
herself to be a fit and proper person to hold a local practising certificate.
(3) If a written statement is provided after the 28 days
mentioned in subsection (2)(b), the Board may accept the statement and
take it into account.
439. Orders requiring
official implementation in this jurisdiction
The State
Administrative Tribunal may, under section 438(2)(b), make any one or more
of the following orders —
(a) an order
that the practitioner’s local practising certificate be suspended for a specified
period or cancelled;
(b) an order
that a local practising certificate not be granted to the practitioner before
the end of a specified period;
(c) an order
that —
(i)
specified conditions be imposed on the practitioner’s practising certificate granted
or to be granted under this Act; and
(ii) the
conditions be imposed for a specified time; and
(iii) specifies the
time (if any) after which the practitioner may apply to the Tribunal for the
conditions to be amended or removed;
(d) an order
publicly reprimanding the practitioner or, if there are special circumstances,
privately reprimanding the practitioner.
440 . Orders requiring official
implementation in another jurisdiction
The State
Administrative Tribunal may, under section 438(2)(b), make any one or more
of the following orders —
(a) an order
recommending that the name of the practitioner be removed from an interstate
roll;
(b) an order
recommending that the practitioner’s interstate practising certificate be
suspended for a specified period or cancelled;
(c) an order
recommending that an interstate practising certificate not be granted to the
practitioner before the end of a specified period;
(d) an order
recommending that —
(i)
specified conditions be imposed on the practitioner’s interstate practising
certificate, or existing conditions be amended; and
(ii) the
conditions be imposed or amended for a specified time; and
(iii) the
conditions specify the time (if any) after which the practitioner may apply to
the Tribunal for the conditions to be amended or removed.
441 . Orders requiring compliance by
practitioner
The State
Administrative Tribunal may, under section 438(2)(b), make any one or more
of the following orders —
(a) an order
that the practitioner pay a fine to the Board of a specified amount not
exceeding $25 000;
(b) an order that the practitioner undertake and
complete a specified course of further legal education;
(c) a
compensation order;
(d) an order
that the complainant pay the amount of legal costs in dispute or that the
amount of legal costs be reduced by a specified amount (not exceeding the
amount in dispute);
(e) an order
that the practitioner provide specified legal services to the complainant
either free of charge or at a specified cost;
(f) an order
that the practitioner undertake a specified period of practice under specified
supervision;
(g) an order
that the practitioner do or refrain from doing something in connection with the
practice of law;
(h) an order
that the practitioner’s practice, or the financial affairs of the practitioner
or of the practitioner’s practice, be conducted for a specified period in a
specified way or subject to specified conditions;
(i) an order that the practitioner’s practice be
subject to periodic inspection for a specified period;
(j) an order that
the practitioner undergo counselling or medical treatment or act in accordance
with medical advice given to the practitioner;
(k) an order that the practitioner use the
services of an accountant or other financial specialist in connection with the
practitioner’s practice;
(l) an order that the practitioner seek advice
in relation to the management of the practitioner’s practice from a specified
person;
(m) an order that the practitioner not
apply for a local practising certificate before the end of a specified period.
“Nor is there anything in R. v. Landy itself which justifies putting theft and conspiracy to defraud
into different categories. Indeed the Court went out of its way to stress that
the test for dishonesty, whatever it might be, should be the same whether the
offence charged be theft or conspiracy to defraud. This is clear from the
reference to R. v. Feely (1973) Q. B. 530, which was a case under section 1 of the Theft
Act. Having set out what we have for convenience called the subjective test,
the Court in R. v. Landy continue:
"In our judgment this is the way the case of Feely should be applied in cases where
the issue of dishonesty arises. It is also the way in which the jury should
have been directed in this case..... "
